*1 48,431 No.
Shirley Appellees, Davis, Davis and v. The Western Charles Appellants. Companies, (560 133) Opin January 22, ion filed Kerry McQueen, Vance, Hobble, Neubauer, Sharp Nordling, McQueen, & A., Liberal, argued cause, appellant. and was on the brief for the Shelley Grayhill, Lawyers Graybill, cause, Elkhart, argued was on appellees. the brief for the
Per Curiam: This is another case the no-fault involving insurance law, the Kansas automobile act, injury reparations K. S. A. 1975 seq. defendant, et The The Western Insurance Com- panies, appeals from a judgment it and in favor of plaintiffs, Mr. and Mrs. Charles Davis.
The case was tried below stipulation of facts which we summarize as follows: Mr. and Mrs. residents of Morton County, Kansas, were the insureds in an automobile policy written by the Western. The policy included all the coverages required by K. I. R. A. A. On February the Davis automobile was involved in a collision with a vehicle driven by Terry W. Robertson. Mrs. Davis was injured and her was automobile damaged. Robert- son was covered aby liability policy written by Trinity Com- panies. The Davises settled their property loss with Trinity, we are not concerned with that loss.
The $1,006.24 paid Davises under the personal injury protection provisions of its (PIP) policy. That payment covered medical loss of partial wages.
Mr. and Mrs. Davis then employed counsel to recover all damages them reason of the negligence includ- ing damages for which the Davises had received payment from coverage. Western under PIP The total damage claimed $2,125.84. Plaintiffs’ was sent a letter demanding Trinity, amount to copy the Western. On the following day the Western advised no anticipated obtaining Trinity; from difficulty desired no assistance from counsel in recovering its PIP claim, and it if became file a payments; necessary for the Western to *2 it would do so through its own counsel or to submit the matter arbitration. Plaintiffs’ counsel advised Trinity plain- tiffs claimed the exclusive action for right of all damages them of by reason the collision with and the exclusive settlement; to right negotiate payment made without any by Trinity consent would be treated as and credit plaintiffs’ voluntary; any the against therefor Davis’ claim be stoutly would Even- opposed. tually Trinity agreed to full amount and pay the demanded issued its draft to Mrs. and the payable attorney, Mr. and the Western. Plaintiffs draft and sent to Western endorsed the with a letter endorse and return the draft to asking the Western to $806.50, counsel, to would then remit who $215.50, the latter the of the PIP less being payments amount had incurred attorney’s the fees being plaintiffs a rata share of pro returned the draft without in settlement. The Western effecting endorsement. the against
Mr. and Mrs. then commenced this action Davis to Western, an the Western requiring order of court the seeking draft, attorney’s share of fees pro the the rata approving endorse $215.50, fees in this action attorney’s awarding plaintiffs and of draft was deposited K. S. A. 40-256. The Trinity to pursuant court. the clerk of the briefs, and the trial on stipulation
After of the matter submission he to the that was stating granting to wrote judge in part: His letter reads plaintiffs. portion of S. A. K. is that the relevant for this decision . The basis “. . attorney’s .’is . . fees phrase being reasonable ‘exclusive of the
40-3113 required attorney including fees repaid the to be the sum construed as by construing the words is. obtained result sum. The same collect legislative intent. ‘excluding’ find to be which I of’ as ‘exclusive . . .” plaintiffs herein granted fees “Judgment for is also awith charged the A formal order followed. It $215.50, $420 an additional fees, taxed attorney’s in this action. plaintiffs fees for attorney’s the Western as awarding erred in district court that the The Western contends pro- under the attorney’s fees it for judgment against plaintiffs that under 40-3113. It claims K. A. 1975 visions of S. the amount in full reimbursement facts, it is entitled stipulated or fees deduction for without paid, benefits attorney’s of the PIP provides. so statute that the expenses, This contention is our in Easom governed decision v. Farmers 221 Kan. 560 P. 2d this day decided. We there held when an injured person, who has received PIP payments, from the recovers tort-feasor as sum which damages exceeds the PIP benefits received attorney’s reasonable fees plus suit, statute requires fully insured us, reimburse PIP carrier. under the facts Accordingly, before the Western is entitled to full the PIP benefits $1,006.24, which it has paid in amount without deduction attorney’s for fees or expenses.
The Western also contends that
the district
court erred
awarding plaintiffs additional
for the
prosecution
fees
agree.
this action. We
K. S. A. 40-256
for the allow-
provides
ance of an attorney’s fee in
on
any action
of insurance
policy
when the insurance
has refused
or
company
without
*3
excuse to
pay
full amount of a loss. The Western did not
a loss under
pay
policy.
its
It paid
policyholders
refuse
and in full for their loss. It later challenged the right
Davises,
of the
under K. S. A.
of an
charge
part
fee
against funds which had been
from a
recovered
third
funds
party,
which the
K. S. A.
Western has a lien.
40-256 does
facts,
not
to such a
apply
wholly
state of
and is
But
inapplicable.
even if it were
applicable,
quite
had
obviously
challenge
asserted
construc-
tion of K. S. A.
Forrester v. State Farm Mutual Automo-
40-3113.
Co.,
442,
173;
bile Ins.
213
517
Kan.
Parker v. Conti-
Co.,
nental
191
Casualty
Kan.
For the reasons reversed. J.,
Pbager, participating. I must from that J., dissenting: respectfully dissent Schroeder, of the opinion inconsistent with my dis- concurring senting Easom v. Farmers Insurance opinion Kan. 2d